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Search and Seizure - Your Rights

I spoke with Seniors at a local high school recently.  They had studied the protections against unlawful search and seizure in the Constitution and their teacher asked me to review their personal rights during a traffic or suspected DUI stop.

Of course, these rights apply to everyone and can be a good reminder for each of us, and for our family and friends.  These are things to review when we are sober, when we are not scared or anxious because law enforcement has pulled us over, when we don’t feel the indignation of our civil rights being violated, and when we can make a deliberate plan.

The things to know:

  1. When you invariably get the question, “Do you know why I pulled you over?” the answer is “No, officer.”  You don’t need to help law enforcement make their case against you.
  2. Previous to being arrested, an officer has to ask your permission if he wants to search your car. “Can I search your car?”  Your answer, “Respectfully, no.  You may not.”
  3. If the officer suspects you of drinking, she will often ask you to take a breath test. This can include a PAS test done on the side of the road or a breath test back at the jail. In a vast majority of cases, you should refuse these breath tests and wait to take a blood test. Why?  Blood tests are more accurate.  Your attorney can have the blood sample retested.  And, the time it takes to travel to the jail/hospital and get your blood drawn will allow your BAC (blood alcohol concentration) to change.  [Note: The only time you should take a breath test instead of a blood test is if you have drugs in your system.]
  4. Do take the blood test. If you refuse this test, there are fairly certain and very serious consequences from the DMV.
  5. Unless you are certain you have no alcohol and no drugs in your system (this includes prescription drugs that alter your ability to drive), you should politely decline to answer any questions an officer asks you. You can also politely decline the field sobriety tests (FSTs).  If the officer suspects that you are driving under the influence, he will arrest you…but this requires law enforcement to gather information without your aid and assures your protection.
  6. Be respectful. Be firm.  Stay calm and quiet.
  7. This is NOT the time to correct the officer’s misunderstandings. This is NOT the time to argue with the officer.  This is NOT the time to get angry and give the officer additional qualities such as “belligerent” or “resistant” or “combative” to add to her report.


Don’t fight your case on the side of the road.  You never win there.


What to do at a DUI Checkpoint

Under state and federal constitution law, California law enforcement perform 2,500 + DUI checkpoints annually. Officers are stationed to check drivers for signs of intoxication and impairment. The likelihood that you will be stopped in a California DUI checkpoint is high. Being prepared to handle the situation will allow you to maintain your rights and freedom. Here is some help.

By law DUI checkpoints should be publicly announced or posted. With dates and possibly even times of day. As a driver nears a checkpoint, in progress, there should also be adequate signage and informative cones, lights, or officers directing traffic.

Your Right to Avoid the Checkpoint

It is legal to avoid a DUI checkpoint all together. You have the right to choose a different route if it is available. While most checkpoints are systematically placed for convenience and effectiveness this may be harder in certain situations. While you have the right to choose another route or road, you must do it lawfully. Very often, saturation patrols are conducted in the vicinity of a checkpoint itself.

These officers are restrained by the standard of probable cause, but will pull you over for an unlawful U-turn, speeding, lighting issues (at night), or license plate discrepancies, ext. Beware of these conditions before you decide to avoid a checkpoint.


Let’s say that you have decided to pass through the checkpoint. As you proceed to the checkpoint, either guided by cones and signs, or officers, prepare to stop and show proof of license. Remember that stops are often systemic to maintain legality. They may also be stopping every car, or they may stop vehicles in a pattern (for example every third, fifth, or tenth).

Law requires the checkpoints to be brief and to the point. Maintain your hands on the wheel and be polite, as the officers should be as well. They may ask some basic questions. Be polite and honest. Being transparent and honest will speed up the stop.

As you proceed through the stop, remember that other officers are on patrol in the area. Manage your speed and lane changes, etc. This will ensure that you have a good experience before, during, and after the DUI checkpoint. The best rule of thumb for a successful DUI checkpoint experience is don’t drink and drive. This is the best standard for avoiding any legal action.

If you do need legal assistance, contact the Law Office of Byron Roope.